Interpretation Guidelines Manual
|ESA Section 53 - Bereavement leave|
Text of Legislation
This section explains when an employee qualifies for bereavement leave and the length of the leave.
|Text of Legislation
53. An employee is entitled to up to 3 days of unpaid leave on the death of a member of the employee's immediate family.
An employee is entitled to an unpaid leave of absence of up to 3 days to grieve, attend a funeral, and take care of issues relating to the death of a member of their “immediate family”.
Under s.1 of the Act “immediate family” means the spouse, child, parent, guardian, sibling, grandchild or grandparent of an employee, and any person who lives with an employee as a member of the employee’s family. It includes common-law spouses, step-parents, and step-children, and same sex partners and their children as long as they live with the employee as a member of the employee’s family
Duration of leave
Days of unpaid leave do not have to be consecutive and there is no requirement for payment unless agreed to by the employer and the employee. An employee may choose to take less than 3 days’ leave. In the event of a dispute, it would be reasonable for an employer to request that an employee provide proof of death and the nature of the relationship.
Terms and conditions of employment protected
Section 54 provides that an employer cannot terminate an employee or change a condition of employment without the employee's written consent as a result of a leave under this Part. See also section 56 for an explanation of the effects of leave under this Part on employment and benefit payments. If the employer's business operations have been suspended or discontinued at the time the employee's leave ends, the employer must comply with s.54(2) when operations resume
In the event of a contravention under this Part of the Act, the director may order a remedy in a determination under s.79(2). The determination will include an escalating monetary penalty, subject to s.98.
Employees covered by a collective agreement
Under the provisions of s.3, parties to a collective agreement are prohibited from giving up the specific employment protection provided in Part 6. Employers, employees and unions may not negotiate terms and conditions that do not meet the standards set out in this Part of the Act, or Part 6 will be deemed to be incorporated into the collective agreement.
Under s.3(7) of the Act, where there is a collective agreement, the enforcement of matters relating to Part 6 is through the grievance procedure, not through the enforcement provisions of the Act.
Related sections of the Act or Regulation
Leaves and Jury Duty
Collective Agreements and the Employment Standards Act